87 So. 3d 487
Miss. Ct. App.2011Background
- White was convicted by a Madison County jury of misdemeanor home-repair fraud under Miss. Code Ann. § 97-23-103 (Rev.2006).
- Contract for renovation valued at $90,300, later reduced to $86,247.45 after modification arranging Byrneans to supply granite and pay permit costs.
- Down payment of $22,500 was made; homeowners agreed to further payments as work progressed with full payment within two days after completion.
- Contract allowed White to suspend work for nonpayment; a two-day nonpayment period was deemed a material breach.
- Homeowners advanced about $53,050; White claimed material purchases and work performed, but key receipts and payments to subcontractors were disputed; expert witnesses offered conflicting repair-value estimates.
- Restitution ordered totaled $37,539.33 to several claimants, including subcontractors and the homeowners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disproportion between work and funds advanced | White argues disproportionality negates fraud | State argues large gap supports intent to defraud | No reversible error; evidence supported conviction |
| Effectiveness of contract suspension provision | White contends provision allowed stopping work for nonpayment | State asserts provision does not immunize criminal fraud | Instructional issue ruled meritless; contract does not create absolute defense |
| Admission of evidence that White did not pay subcontractors | Defense says irrelevant to home-repair fraud | State relied on payments/creditor relations to show intent | No reversible error; evidence properly considered in context of fraud |
| Jury instruction D-12 on contract-breached defense | White seeks verdict of not guilty if homeowners breached | Mississippi law does not permit a criminal defense based on homeowner breach | Instruction properly denied; not a correct statement of law |
| Restitution—consideration of defense expert’s estimates | White argues Green’s estimates should inform restitution | Judge weighed testimony; credibility and weight for fact-finder | No abuse of discretion; trial court could rely on other evidence over Green's estimates |
Key Cases Cited
- King v. State, 798 So.2d 1258 (Miss. 2001) (credibility and weight of evidence review standard)
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard of review for sufficiency and credibility)
- Mixon v. State, 921 So.2d 275 (Miss. 2005) (admissibility and discretion of trial judge)
- Miller v. State, 983 So.2d 1051 (Miss.2008) (credibility determinations rest with the jury; evidentiary discretion)
- House v. State, 754 So.2d 1147 (Miss.1999) (fact-finder credibility and weight determinations respected)